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Vogel v. OM ABS, Inc.

United States District Court, C.D. California

January 30, 2014

Martin Vogel, Plaintiff,
v.
OM ABS, INC. dba Carrows; TSL Development Inc. Defendants.

ORDER RE: MOTION TO STRIKE AFFIRMATIVE DEFENSES [28]

RONALD S.W. LEW, Senior District Judge.

Currently before the Court is Plaintiff Martin Vogel's ("Plaintiff") Motion to Strike Affirmative Defenses [28]. The Court, having reviewed all papers submitted pertaining to this Motion, NOW FINDS AND RULES AS FOLLOWS:

The Court hereby GRANTS in part and DENIES in part Plaintiff's Motion to Strike Affirmative Defenses.

I. BACKGROUND

Plaintiff is a T-3 paraplegic who is "physically disabled." First Amended Complaint ("FAC") ¶ 8. Defendant OM ABS, Inc., doing business as Carrows, owns operates, and leases a restaurant (the "Restaurant"). Id. at ¶ 7. Plaintiff claims that Defendants OM ABS, Inc. and TSL Development, Inc. ("Defendants") violated the Americans with Disabilities Act ("ADA") and related California state laws because the Restaurant failed to provide adequate access for the disabled. Specifically, Plaintiff claims that: (1) the Restaurant has incorrect tow away signage, (2) one of the disabled parking spaces lacks signage, (3) there are no spaces designated as being van accessible, (4) there is no International Symbol of Accessibility mounted at the Restaurant's entrance that would indicate to Plaintiff that the Restaurant is intended to be accessible to him, (5) the toilet tissue dispenser is mounted too far from the back wall and too far from the front of the water closet, (6) the pipes beneath the lavatories are not wrapped, and (7) the paper towel dispenser is mounted too high, making it difficult for Plaintiff to reach and use. Id. at 10. Plaintiff seeks, inter alia, injunctive and declaratory relief, statutory damages, and attorneys' fees and costs.

Plaintiff brought suit on March 13, 2013, against Defendants OM ABS, LLC and TSL Development Inc. [1].

On August 9, 2013, Defendant OM ABS, LLC was terminated from this Action, and Defendant OM ABS, Inc. was added as a defendant [11]. Plaintiff filed a First Amended Complaint on August 9, 2013 against Defendants OM ABS, Inc. and TSL Development, Inc. [11].

Defendant TSL Development, Inc. ("Defendant TSL") filed its answer and pled twenty-five affirmative defenses[1] to Plaintiff's First Amended Complaint on December 3, 2013 [21].

On December 23, 2013, Plaintiff filed the present Motion to Strike Defendant TSL's Affirmative Defenses [28]. On January 8, 2014, Defendant TSL filed a Notice of Non-Opposition to Plaintiff's Motion to Strike [29]. This matter was taken under submission on January 23, 2014 [30].

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(f), the Court may, by motion or on its own initiative, strike "an insufficient defense or any redundant, immaterial, impertinent or scandalous" matters from the pleadings. The purpose of Rule 12(f) is "to avoid the expenditure of time and money that must arise from litigating spurious issues by disposing of those issues prior to trial." Whittlestone, Inc. v. Handi-Craft Co. , 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty , 984 F.2d 1524, 1527 (9th Cir. 1993)).

The grounds for a motion to strike must appear on the face of the pleading under attack. See SEC v. Sands , 902 F.Supp. 1149, 1165 (C.D. Cal. 1995). In addition, the Court must view the pleading under attack in the light more favorable to the pleader when ruling upon a motion to strike. In re 2TheMart.com, Inc. Sec. Litig , 114 F.Supp.2d 955, 965 (C.D. Cal. 2000) (citing California v. United States , 512 F.Supp. 36, 39 (N.D. Cal. 1981)). As a rule, motions to strike are regarded with disfavor because striking is such a drastic remedy; as a result, such motions are infrequently granted. Freeman v. ABC Legal Servs., Inc. , 877 F.Supp.2d 919, 923 (N.D. Cal. 2012). If a claim is stricken, leave to amend should be freely given when doing so would not cause prejudice to the opposing party. Vogel v. Huntington Oaks Delaware Partners, LLC, 291 F.R.D. 438, 440 (C.D. Cal. 2013) (citing Wyshak v. City Nat'l Bank , 607 F.2d 824, 826 (9th Cir. 1979)).

III. ANALYSIS

As a preliminary matter, Plaintiff asks the Court to apply the pleading standard announced in Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007) and Ashcroft v. Iqbal , 556 U.S. 662 (2009) to his Motion to Strike Affirmative Defenses, which would require the pleading of facts sufficient to state a facially plausible affirmative defense. Mot. 2:17-21. However, Plaintiff has not provided any binding authority holding that the Twombly/Iqbal standard applies to affirmative defenses. District courts within the Ninth Circuit are split on the issue, and the Ninth Circuit has yet to address it. See J & J Sports Productions, Inc. v. Scace, No. 10cv2496-WQH-CAB, 2011 WL 2132723, at *1 (S.D. Cal. May 27, 2011). Without binding authority expanding the scope of Twombly/Iqbal, the Court finds that the traditional standard of fair notice to the plaintiff is still applicable to the pleading of affirmative defenses. Accordingly, the Court determines the sufficiency of pleading an affirmative defense by analyzing whether it gives Plaintiff fair notice of the defense. See Wyshak v. City Nat'l Bank , 607 F.2d 824, 827 (9th Cir. 1979).

Plaintiff next argues that eleven affirmative defenses are factually insufficient as they fail to give Plaintiff fair notice of the defense.

The Court finds that Defendant TSL's first affirmative defense, failure to state a claim, fails as a matter of law because it is not an affirmative defense, but rather a failure of Plaintiff's prima facie case. Barnes v. AT&T Pension Ben. Plan-Nonbargained Program , 718 F.Supp.2d 1167, 1174 (N.D. Cal. 2010) (ruling that failure to state a claim is not an affirmative defense). Therefore, the Court GRANTS Plaintiff's Motion to Strike Defendant TSL's first affirmative defense without leave to amend.

The Court next finds that Defendant TSL's second, fourth, and sixth affirmative defenses (laches, estoppel, and waiver, respectively) fail to set forth any facts regarding how Plaintiff's conduct allegedly gave rise to a defense of laches, estoppel, or waiver. See Desert European Motorcars, LTD v. Desert European Motorcars, Inc., No. EDCV 11-197 RSWL , 2011 WL 3809933, at *2-*4 (C.D. Cal. Aug. 25, 2011) (granting a motion to strike affirmative defenses of estoppel, waiver, and laches for failure to state any facts that provide fair notice). As such, the Court GRANTS Plaintiff's Motion to Strike Defendant TSL's second, fourth, and sixth affirmative defenses. However, because Defendant TSL may be able to allege additional facts to support these affirmative defenses, the Court GRANTS Plaintiff's Motion to Strike these affirmative defense with 20 days leave to amend.

The Court finds that Defendant TSL's third affirmative defense, unclean hands, fails because the defense is improperly pled and fails to provide sufficient facts to give Plaintiff fair notice of the conduct giving rise to this defense. See XILINX, Inc. v. Altera Corp., No. C 93-20409 RMW (EAI), 1993 WL 767688, at *1 (N.D. Cal. Oct. 25, 1993); Federal Trade Comm'n v. N. Am. Mktg. & Assocs., LLC, No. CV-12-0914-PHX-DGC, 2012 WL 5034967, at *3 (D. Ariz. Oct. 18, 2012). As such, the Court GRANTS Plaintiff's Motion to Strike Defendant TSL's third affirmative defense with 20 days leave to amend.

The Court finds that Defendant TSL's fifth affirmative defense, failure to mitigate, fails as it gives no notice to Plaintiff of the basis of his alleged failure to mitigate and GRANTS Plaintiff's Motion to Strike this defense with twenty days leave to amend. See Kohler v. Staples the Office Superstore, LLC, 291 F.R.D. 464, 469 (S.D. Cal. 2013).

The Court finds that Defendant TSL's seventh affirmative defense, that Plaintiff's claim is barred by the applicable statute of limitations, is properly pled and is an appropriate affirmative defense. See Kohler v. Bed Bath & Beyond of California, LLC, No. CV 11-4451 RSWL (SPx), 2012 WL 424377, at *1 (C.D. Cal. Feb. 8, 2012). Therefore, the Court DENIES Plaintiff's Motion to Strike Defendant TSL's seventh affirmative defense.

The Court finds that Defendant TSL's eighth affirmative defense, that Plaintiff lacks standing, fails. "As standing is an element of plaintiff's prima facie case, it is properly addressed through denial or a motion to dismiss." CSK Auto, 2013 WL 3942002, at *4 (quoting Strategic Rests. Acquisition Co. II, LLC, 289 F.R.D. 595). As such, the Court GRANTS Plaintiff's Motion to Strike Defendant TSL's eighth affirmative defense without leave to amend.

The Court finds that Defendant TSL's tenth, eleventh, and twelfth (A) affirmative defenses, that Plaintiff's requested accommodation is not feasible, not readily achievable, and would result in an undue burden, fail because Defendant TSL fails to identify which specific accommodations are not feasible, not readily achievable, or would result in an undue burden. As a result, the Court GRANTS Plaintiff's Motion to Strike these defenses with twenty days leave to amend.

Plaintiff further argues that several affirmative defenses should be stricken as legally insufficient.

The Court finds that Defendant TSL's ninth, thirteenth and fourteenth affirmative defenses - that Plaintiff's claims are barred because his injuries were caused by the wrongful conduct, negligence, or fault of others, and that Defendant's proportional liability, if any, should be reduced to the extent that Plaintiff's injuries were caused by others, fails as these are not viable defenses. See CSK Auto, 2013 WL 3942002, at *4 (citing Staples the Office Superstore, LLC, 2013 WL 544058, at *4 (striking affirmative defense premised on third party conduct in disability access case under federal and California law)). As such, the Court GRANTS Plaintiff's Motion to Strike Defendant TSL's ninth, thirteenth, and fourteenth affirmative defenses without leave to amend.

The Court finds that Defendant TSL's sixteenth affirmative defense, failure to exhaust administrative remedies, fails as the ADA does not require Plaintiff to exhaust administrative remedies before bringing suit. See Botosan v. Fitzhugh , 13 F.Supp.2d 1047, 1049 (S.D. Cal. 1998). As such, the Court GRANTS Plaintiff's Motion to Strike this defense without leave to amend.

The Court finds that Defendant TSL's twenty-second affirmative defense - that Plaintiff is barred from obtaining relief under Cal. Civ. Code § 51, which excludes requirements to effect construction, alteration, repair, or modification - fails to give Plaintiff fair notice of the grounds of this defense. Specifically, Defendant TSL fails to state whether this is a defense to Plaintiff's ADA claims or to Plaintiff's related state law claims. As such, the Court GRANTS Plaintiff's Motion to Strike this defense with twenty days leave to amend.

The Court finds that Defendant TSL's twenty-third affirmative defense, applicable alike to all persons, fails, as the Court could find no support that this is a recognized affirmative defense. As Defendant TSL fails to argue in support of this affirmative defense, the Court GRANTS Plaintiff's Motion to Strike this defense with twenty days leave to amend.

The Court finds that Defendant TSL's twenty-fourth affirmative defense, reservation of defenses, fails. A formal "reservation" of the right to bring further defenses, strictly speaking, serves no purpose because the defendant retains the right to add defenses through a properly filed motion to amend. Romero, 2012 WL 2317566, at *4. Thus, Defendant's right to amend pleadings to include additional legitimate defenses is already preserved by Rule 15 of the Federal Rules of Civil Procedure. Id . (citing Wyshak , 607 F.2d at 826-27). As such, Defendant TSL's reservation clause is not a proper affirmative defense, is redundant, and the Court GRANTS Plaintiff's Motion to Strike this defense without leave to amend.

Plaintiff also argues that Defendant TSL's twelfth (B) and seventeenth affirmative defenses should be stricken as impertinent.

The Court finds that Defendant TSL's twelfth (B) affirmative defense, that Plaintiff's claims are barred by the doctrine of after-acquired evidence, fails as this is a defense in cases of employment discrimination. See Camp v. Jeffer, Mangels, Butler & Marmaro , 35 Cal.App.4th 620, 632 (1995) ("In general, the after-acquired-evidence doctrine shields an employer from liability or limits available relief where, after a termination, the employer learns for the first time about employee wrongdoing that would have led to the discharge in any event."). Because Plaintiff does not raise employment discrimination in his Complaint, the Court GRANTS Plaintiff's Motion to Strike this affirmative defense without leave to amend.

The Court finds that Defendant TSL's seventeenth affirmative defense, no punitive damages, fails as Plaintiff has not pled punitive damages. Therefore, the Court GRANTS Plaintiff's Motion to Strike Defendant TSL's seventeenth affirmative defense without leave to amend.

Plaintiff also argues that the Court should strike Defendant TSL's fifteenth, nineteenth, and twentieth affirmative defenses as redundant. Where a defendant restates negative defenses that existed in earlier parts of the pleading, those defenses are redundant pursuant to Rule 12(f) and should be stricken. Barnes v. AT&T Pension Ben Plan-Nonbargained Program , 718 F.Supp.2d 1167, 1174 (N.D. Cal. 2010). The Court finds that Defendant TSL's fifteenth, nineteenth, and twentieth affirmative defenses, in which Defendant TSL alleges that it did not impede or impair access and that it did not violate any laws, is STRICKEN as redundant because Defendant TSL already denied the existence of access barriers and denied that it violated the law as part of its answer. As such, the Court GRANTS Plaintiff's Motion to Strike these affirmative defenses without leave to amend.

IV. CONCLUSION

Based on the above analysis, the Court GRANTS in part and DENIES in part Plaintiff's Motion to Strike as follows:

• First Affirmative Defense - GRANT without leave to amend

• Second, Fourth, and Sixth Affirmative Defenses - GRANT with twenty days leave to amend

• Third Affirmative Defense - GRANT with twenty days leave to amend

• Fifth Affirmative Defense - GRANT with twenty days leave to amend

• Seventh Affirmative Defense - DENY

• Eighth Affirmative Defense - GRANT without leave to amend

• Ninth, Thirteenth, and Fourteenth Affirmative Defenses - GRANT without leave to amend

• Tenth, Eleventh, Twelfth (A) Affirmative Defenses - GRANT with twenty days leave to amend

• Twelfth (B) Affirmative Defense - GRANT without leave to amend

• Fifteenth, Nineteenth, and Twentieth Affirmative Defenses - GRANT without leave to amend

• Sixteenth Affirmative Defense - GRANT without leave to amend

• Seventeenth Affirmative Defense - GRANT without leave to amend

• Twenty-Second Affirmative Defense - GRANT with twenty days leave to amend

• Twenty-Third Affirmative Defense - GRANT with twenty days leave to amend

• Twenty-Fourth Affirmative Defense - GRANT without leave to amend

IT IS SO ORDERED.


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